Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. (...) These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners. (shrink)

In relation to the Kantian theory that moral judgments are imaginarily grounded, this contribution explores how moral agents experience and make use of this imaginary groundedness. Drawing from a strand of aesthetics that conceives of imagination as make-believe, the imaginary ground of moral judgment is theorized to stem from the interaction between active participants who pretend that their claims are grounded, and passive participants who are invited to go along. Based on this reconstruction, the experience of the moral imaginary is (...) argued to stem from a divided mind. It allows moral agents to be partly devoted to the mental and communicative attitude fitting the fictional world of groundedness, and partly to generating personal responses to moral claims. Using the experience of artistic fiction as an example, the actual experience of morality’s imaginary ground is finally located in the interplay between those two spheres. (shrink)

In relation to the (neo-)Kantian theory that moral judgments are imaginarily grounded, this contribution explores how moral agents experience and make use of this imaginary groundedness. Drawing from a strand of aesthetics that conceives of imagination as make-believe, the imaginary ground of moral judgment is theorized to stem from the interaction between active participants who pretend that their claims are grounded, and passive participants who are invited to go along. Based on this reconstruction, the experience of the moral imaginary is (...) argued to stem from a divided mind. It allows moral agents to be partly devoted to the mental and communicative attitude fitting the fictional world of groundedness, and partly to generating personal responses to moral claims. Using the experience of artistic fiction as an example, the actual experience of morality’s imaginary ground is finally located in the interplay between those two spheres. (shrink)

Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor record, it is hard to comprehend how constitutionalism remains such an influential (...) factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse. (shrink)